TOPIC
:Exclusive rights

The Southern District of Florida has granted summary judgment to SiriusXM on Flo & Eddie’s claims that Sirius infringed Flo & Eddie’s public performance rights under Florida state law by streaming pre-1972 sound recordings. Although Flo & Eddie have prevailed in the trial courts in the Southern District of New York and Central District of California on nearly identical claims, the court found that “Florida is different” because, unlike California and New York, the state has no statutory or decisional law recognizing public performance rights in pre-1972 sound recordings. The New York case is currently on interlocutory appeal to the Second Circuit on the merits, whereas the California case is likewise on appeal, but on the issue of the court’s grant of class certification following a summary judgment ruling in favor of Flo & Eddie. Flo & Eddie will no doubt appeal the Florida ruling to the Eleventh Circuit.

The Central District of California has stayed Flo & Eddie v. Sirius XM and certified for interlocutory appeal its grant of class certification. This is an interesting development, as the court earlier declined to certify for interlocutory appeal its grant of summary judgment to Flo & Eddie on the merits. You can read the opinion here.

On Friday I had the privilege of speaking at the AIPLA Spring Meeting in Los Angeles on the subject of pre-1972 sound recordings and the current series of lawsuits brought by the successors of the Turtles against Sirius XM regarding royalties over pre-1972 sound recordings. Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws. As originally drafted, however, federal copyright law did not extend copyright protection to sound recordings, leaving those works to be regulated by the states. Congress amended the copyright law in 1972 to add federal protection for sound recordings, but it granted this protection on a prospective basis only. Sound recordings fixed before February 15, 1972 thus remain subject to state law. A series of lawsuits brought by Flo & Eddie, Inc. (“Flo & Eddie”), the entity that owns the copyrights for sound recordings created by the 1960s rock group the Turtles, is upending rules thought long established regarding performance rights of pre-1972 sound recordings under state law. Continue reading »

Aereo Inc. has reached a proposed settlement with the broadcasters that have sued it for infringing their copyrighted works. The settlement would result in payment of $950,000 to the broadcasters in satisfaction of their claims seeking over $99 million – amounting to less than a penny on the dollar.

This development follows lengthy legal proceedings that saw the dispute go all the way to the Supreme Court on the issue whether Aereo was publicly performing the plaintiffs’ television shows, originally broadcast over the air for free, by streaming them to subscribers over the Internet. Section 106 of the Copyright Act reserves to the copyright owner six exclusive rights, including the right to publicly perform literary, musical, dramatic and motion picture works. In the so-called “Transmit Clause,” the statute provides that “to perform or display a work ‘publicly’ means … To transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. The Transmit Clause was added to the Copyright Act when it was amended in 1976 as a result of two Supreme Court cases: Fortnightly Corp. v. United Artists Television, Inc. and Teleprompter Corp. v. Columbia Broadcasting System, Inc. In those cases, the Court had held that community cable systems that retransmitted free, over-the-air broadcast signals did not “perform” the copyrighted works in the broadcasts and did not infringe the copyright owners’ public performance rights. Congress added the Transmit Clause to the 1976 Act to overturn these decisions. Continue reading »

Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws. As originally drafted, however, the Copyright Act of 1976 – the current iteration of the Act – made an exception for sound recordings fixed before February 15, 1972, leaving those works to be regulated by the states. State law thus applies to determine the rights and remedies available to the copyright owner of pre-1972 sound recordings. Continue reading »

About Naomi Jane Gray

Naomi Jane Gray is a principal in the law firm Shades of Gray Law Group, P.C., where she focuses her practice on intellectual property litigation, prosecution and counseling, with a particular emphasis on copyrights and trademarks.